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ested with the landlord in providing facili- 13. APPEAL AND ERROR Omw232(3) — RESERVAties for gathering the crop and preparing it

TION OF GROUNDS OF REVIEW-OBJECTION

TO INSTRUCTION. for market, and they are in a class to them

On appeal, only the objection to an instrucselves, so that a gin operated for the benefit tion made below will be considered. of the landowner himself and his tenants 4. MASTER AND SERVANT Omw 236(2)-HAZARDS and share croppers does not come within the OF EMPLOYMENT-ASSURANCE OF SAFETY. general definition of a “public gin” as used of the employment, and the servant has the right

A master is presumed to know the hazards in the statute. The protection of this class to rely on the master's assurance of safety, unof patrons of a gin may be as appropriate as less the danger is so open and obvious that its that extended by the provisions of this stat- existence is both known to and appreciated by ute to the general public, but the lawmakers the servant. have not seen fit to regulate all gins, and 5. TRIAL Eww125(4)--ARGUMENT OF COUNSEL

IMPROPRIETY. only those gins that are operated for the ben

In a servant's action for injuries, his counefit of the public come within the terms of sel's statement in closing argument that his the statute. The province of the courts is client was very poor, and that he (counsel) had · to construe the law and not to make the law. spent at least $300 of his own money in prose

been forced to pay out costs himself, and had The case of Cawker v. Meyer, 147 Wis. cuting the suit, was improper. 320, 133 N. W. 157, 37 L. R. A. (N. S.) 510, 6. TRIAL 133(6)-CURE OF ERROR-IMPROseems to be a leading one on this subject. PRIETY IN ARGUMENT. There was involved in that case the construc argument and admonished the jury to disregard

Where the court sustained objection to such tion of a statute regulating certain public it, the error was cured. utilities, and the court said:

7. TRIAL 125(4)- ARGUMENT OF COUNSEL"The word 'public must be construed to mean IMPROPRIETY. more than a limited class defined by the relation The statement of plaintiff's counsel in arguof landlord and tenant, or by nearhess of loca- ment that defendant was a large corporation tion, as neighbors, or more than a few who, and worth lots of money, and would not pay by reason of any peculiar relation to the owner even a 10 cent judgment, but would appeal of the plant, can be served by him.”

to the Supreme Court, and keep the case in We need not in the present case give anys. APPEAL AND ERROR C 1060(4)– HARMLESS

court as long as possible, was improper. broader definition of the term than to say

ERROR-IMPROPER ARGUMENT. that the facts of this case, as set forth in Such argument was harmless to defendant, the complaint, do not bring the business of when no complaint was or could have been made appellees within the terms of the statute. against the verdict as excessive, the argument Therefore we limit the decision to the par- to make a finding of liability which would not

not having been calculated to induce the jury ticular facts set forth, and hold that the op- otherwise have been made. eration of a cotton gin by a farmer in con- 9. TRIAL Cmw 344 - QUOTIENT VERDICT — IMnection with his own farm for the purpose

PEACHMENT BY JUROR. of ginning his own cotton and that of his the testimony of a juror.

A quotient verdict cannot be impeached by tenants, share croppers, and others who produce crops on the farm is not a public gin

Appeal from Circuit Court, Boone County ; ner within the meaning of the statute, and Jno. I. Worthington, Judge.

Suit by Cleat Wallis, by next friend, that a gin so operated is not subjected by the statute to regulation.

against the Chess & Wymond Company. Decree affirmed.

From judgment for plaintiff, defendant ap

peals. Affirmed. (134 Ark. 136)

Brundidge & Neelly, of Searcy, for appel

lant. CHESS & WYMOND CO. v. WALLIS.

E. G. Mitchell, of Harrison, for ap(No. 332.)

pellee. (Supreme Court of Arkansas. April 29, 1918.) SMITH, J. On May 27, 1914, while appel1. MASTER AND SERVANT 289(4)-INJURIES lee was engaged in cutting stave bolts for TO SERVANT-QUESTION FOR JURY.

the appellant company, he was injured by a In a stave bolt cutter's action for injuries limb falling from a tree, which struck him when a limb fell from a tree and struck him,

on the head. He sustained a very serious whether plaintiff, a young man, though not an inexperienced timber man, had the right to rely injury, and brought this suit, through his on his foreman's assurance of the safety of the father as next friend, to recover damages to place to which he was assigned to work held for compensate the injury. On appellee's behalf the jury.

the testimony was to the effect that he was 2. TRIAL C296(4, 5)-INSTRUCTION-CURE OF directed by his foreman, a man named Nor

ERROR BY OTHER INSTRUCTIONS.

In such action, the instruction that if de- man, to saw a log lying under the hanging fendant, by its authorized agent, ordered plain- limb, when appellee called attention to the tiff into a place of danger, and plaintiff, by rea- limb, but was assured by Norman that there son of youth and inexperience, did not appreciate the danger, and defendant knew it, or was no danger of the limb falling. Appellee should have known it, it was defendant's duty commenced the task to which he was assignto warn him of the danger, etc., was not errone- ed, and while so employed the limb fell upon ous, when read in connection with the other in him. Norman denied having seen the limb structions, though not happily framed to present the exact' issue whether plaintiff had a right or having given any assurance as to the abto rely on his foreman's assurance of safety. sence of danger. Appellee was nearly grown at the time of his injury and had had several, ence is both known to and appreciated by the years experience working in timber, notwith- servant. The rule is stated in 4 Labatt on standing his youth, but he testified that he Master and Servant (2d Ed.), page 3965, as relied upon the assurance of Norman that the follows: limb would not fall, and that it was only be- "But it has been held that the assurance of cause of this assurance that he commenced safety given by the master may be of such a working under the limb.

character as to take away all question of as

sumption of risk, even if the risk is known to Over appellant's objection the court gave the servant. The same effect is reached in a the following instruction :

number of cases which hold that the servant "(1) If the defendant, by its authorized agent, may recover if he is injured while belying upon · ordered plaintiff into a place of danger, to aid an assurance of safety, unless the danger was so in cutting up a tree,' and plaintiff by reason of great and imminent that a reasonably prudent youth and inexperience did not know of and man would not have incurred it." appreciate the danger of the situation and defendant knew this, or ought in the exercise of the right to take into account appellee's age

We cannot say that the jury did not have ordinary care on its part to have known it, then it was the defendant's duty to warn him of this and experience as contrasted with that of his danger, so that, as far as might be by proper foreman, and to find therefrom that appellee care on its part, plaintiff could perform his duty had the right to rely upon the assurance in safety to himself; if the defendant failed in given, and that he was not guilty of conthis respect, and plaintiff, while exercising due care for his own safety, by such failure, suffer- tributory negligence, and did not assume the ed the injuries sued for, then plaintiff should risk. McLeod v. Des Arc Oil Mill Co., 199 recover in this action."

S. W. 932. [1-3] To the giving of this instruction ap- [5, 6] Exceptions were saved to two porpellant at the time objected generally, and tions of the argument of counsel for appellee further objected specifically for the reason before the jury. In his closing argument that under the law and the evidence as counsel made the following statement: testified to by appellee himself the company “Gentlemen of the jury, my client Cleat did not owe to him any duty of warning as Wallis is a very poor man, and I have been to his own safety, because his experience in having to pay out costs in this case myself, and

I have spent at least $300 of my own money in such employment showed there was no ne

prosecuting this suit." cessity for warning him. In passing upon the objection made to this instruction it is

It is recited in the bill of exceptions that proper to say that the court gave at appel- this statement was made in response to cerlant's request a number of instructions, de- tain statements of counsel for appellant; claring the law as contended for by it; in but the objection made to the argument was fact, the court gave all the instructions re- sustained, and the court admonished the juquested by appellant. And while it is true ry to disregard it. The statement of counthat appellee was not an inexperienced tim- sel was, of course, an improper one, but we ber man, he was still a young man, and we think under the circumstances that it was think the record presents a question of fact not so prejudicial as not to have been cured which should have been submitted to the by the admonition of the court concerning'it. jury, and that is, whether appellee had the [7,8] Again in his argument counsel for right to rely on Norman's assurance of the appellee stated: safety of the place to which he was assigned

"Gentlemen of the jury, the defendant, Chess to work, The instruction is not happily worth lots of money, and if you are to give us

& Wymond Company, is a large corporation and framed to present the exact issue in the case, a judgment, they would not pay it off if it were but we think it was not erroneous when read only ten cents, but would appeal to the Suin the light of and in connection with the preme Court of the state and keep it in court other instructions. No objection was made

as long as possible.” to the instruction other than the one just

Ohjection was also made to this argument, indicated; therefore none other will be con- and the court was requested to exclude it sidered now. The warning of which the in- and admonish the jury to disregard it. But struction speaks may not have enabled ap- the court declined to rebuke counsel or to pellee to perform his work any more safely, exclude the argument from the jury. It is but appellee says the assurance of safety apparent that this argument, too, was an induced him to take the place assigned to improper one, but the majority of the court him.

are of the opinion that its only effect was to [4] It is argued that the danger was open urge the jury to return a larger verdict and obvious, and that Norman could not have than would otherwise have been done, and had any more knowledge of the danger than that it was not an argument calculated to inappellee himself had, for according to ap-duce the jury to make a finding of liability pellee's testimony the presence of the sus- which would not otherwise have been made, pended limb was known alike to both him and that, inasmuch as no complaint has been self and Norman. But it is just here that we made or can be made against the verdict as think the jury question arises. The master having been returned for

an excessive is presumed to know the hazards of the em- amount, it therefore affirmatively appears ployment, and the servant has the right to that no prejudice resulted from the argurely on the assurance of safety, unless the ment. St. L., I. M. & S. R. Co. v. Brown, danger is so open and obvious that its exist- 100 Ark. 107, 140 S. W. 279.

[9] It is finally insisted that the verdict bank belonging to district, but contractor with in the case was arrived at by lot. And as districtsued in chancerý to recover what it tending to support that contention, the testing proper forum, and bank, by answer and

owed him, making bank a garnishee, equity betimony of a juror was heard, from which it cross-complaint, asked that summons be issued appears that the verdict was not arrived at and served on the district on the cross-comby lot, but was a quotient verdict, which plaint, which was done, and the district filed

demurrer to the answer and the cross-complaint had been arrived at by adding together the of the bank, raising the issue of the amount owamounts for which the

the different jurors ed by the bank, so that the chancellor's decision thought the verdict should be and of divid- in the equity or garnishment case was an adjuing that sum by 12. In the case of Speer dication of the amount the bank owed the drain

age district such decision, unappealed from, was V. State, 198 S. W. 113, we expressly held res judicata in the action by the treasurer of that a verdict arrived at in this manner was the district against the bank, which was not a quotient verdict, and not one determined tried until after determination of the garnishby lot, and that such a verdict could not, ment, suit; trial having been postponed on the

. therefore, be impeached by the jury. It is true the Speer Case, supra, was a criminal

Appeal from Circuit

Circuit Court, Randolph case while the instant case is a civil case; County; J. B. Baker, Judge. but the right of a juror thus to impeach his

Suit by J. O. Sallee, as Treasurer, of Runverdict was raised in the case of Ward v. ning Lake 'Drainage District, against Ferd

' Blackwood, 48 Ark. 408, 3 S. W. 624, which Spinnenweber and the Bank of Corning. was also a civil case.

There the affidavit From judgment for the bank, plaintiff apof the juror would have shown that the peals. Affirmed. verdict was arrived at by lot; but the court On July 8, 1915, J. 0. Sallee, as treasurer held the testimony of the juror, showing of Running Lake drainage district, sued that fact to be inadmissible for that pur- Ferd Spinnenweber and the Bank of Cornpose, and in doing so Judge Battle, speaking to recover a sum of money alleged to be ing for the court, said:

in the hands of the bank which belonged to “In Pleasants v. Heard, 15 Ark. 407, the af- the drainage district. The complaint alleg

. fidavit of Strawn, one of the jurors, was filed to ed that Ferd Spinnenweber had been treasshow that the jury agreed that each member thereof should write down the amount that he urer of the drainage district and had been was in favor of, and that these several amounts succeeded in office by J. 0. Sallee; that should be added up and their sum divided by Spinnenweber at the expiration of his term 12, the number of the jurors, and that the quo- of office had in his hands the sum of $26,tient should be taken and written as the amount 775.81, which he had deposited in the Bank of their verdict, which was accordingly done,

, and the verdict 'so arrived at was returned into of Corning; that he gave to Sallee a check court as the verdict of the jury. Chief Justice upon the Bank of Corning for said sum; that English, in delivering the opinion of the court, the check was duly presented to the bank said: "Though there are some conflicting cases, we think it may be safely decided, upon author and payment thereof refused. The circuit ity, and for many good reasons, that the affidavit court sustained a demurrer to the complaint, of the juror Strawn was not admissible in this and, the plaintiff electing to stand on his case to impeach the verdict rendered by him for the cause stated in the affidavit.' Thompson & demurrer, judgment was rendered against Merriam on Jury Trials, $ 414. * * * The him in favor of the defendants. The plainrule laid down in Pleasant v. Heard has not tiff appealed to this court, which reversed been changed or repealed in civil cases, þut, on the judgment of the circuit court. The court the contrary, in such cases remains in full force."

held that the treasurer of the drainage disJudgment affirmed.

trict had a right to maintain an action against any person or corporation improperly

withholding the money of the district from (134 Ark. 109)

him. The court also held that the complaint SALLEE, Treasurer, etc., v. BANK OF CORN-in effect alleged that Spinnenweber had deING et al. (No. 329.)

posited the funds of the district in the Bank (Supreme Court of Arkansas. April 29, 1918.) of Corning and that the funds were wrong1. GARNISHMENT 17-DIRECTORS OF DRAIN- fully withheld by the bank from the custody AGE DISTRICT.

of Sallee, as treasurer. It was ordered that The board of directors of a drainage district, the cause be remanded for further proceedbeing an agency of the government created for public purposes, on the ground of public policy, ings according to law. Sallee V. Bank of was not subject to garnishment at law.

Corning, 122 Ark. 502, 184 S. W. 44. 2. APPEAL AND ERROR Om918(1) PRESUMP- Upon a remand of the case, at the July, TION—AMENDMENT PURSUANT TO LEAVE.

1916, term, of the circuit court, the Bank The presumption in the absence of showing to the contrary, is that a garnishee amended its of Corning filed a separate answer to the pleading pursuant to leave given by the court, complaint, substantially as follows: It adand that proof was taken on the issue.

mitted that Spinnenweber had been treas3. JUDGMENT O 645 - RES JUDICATA - DECI- urer of the district and at the expiration of SION IN GARNISHMENT SUIT.

Where treasurer of drainage district sued his term of office there was on deposit at former treasurer, and bank in which latter had the Bank of Corning the sum of $26,775.81. deposited moneys of district, to recover sum in It is admitted that the bank had refused to

pay the check drawn on it by Spinnenweber | The motion of the Bank of Corning to transin favor of Sallee, as treasurer of the drain- fer the case to the chancery court was overage district, for this amount, and as a rea- ruled. The bank presented its motion to son therefor alleged that the check was have the trial of this cause postponed until drawn in violation of a contract entered in-after the determination of the suit in the to between the district and the bank at the chancery court. This motion was granted. time the funds were deposited. It alleged To sustain its plea of res adjudicata, the bank that Spinnenweber deposited the funds in the introduced in evidence all the proceedings bank by order of the board of directors of in the chancery suit. the drainage district under a contract which In the equity suit of Brown against the provided that the funds were to remain in drainage district, in which the bank was garthe bank until they were needed to be paid nished, the bank filed what it termed an anout for the work of the construction of the swer and cross-complaint. It admitted that improvement. W. R. Brown entered into a it owed the drainage district $8,790.01, with contract with the district to construct the 1 per cent. interest thereon from the 230 improvement for $85,000. The district was day of June, 1916, and stated that said sum unable to sell its bonds at par, and Brown was on deposit in the bank to the credit of was unable to continue the contract unless the treasurer of the drainage district. It money was furnished him for that purpose. denied that it was indebted to the district The Bank of Corning had already made ad- or had in its possession any other property vances to Brown, to be used in performing or money belonging to said district. It set his contract. Brown, after consulting with forth at length the contract and circumstancthe Bank of Corning, agreed to purchase es accompanying the deposit of the money in the bonds of the district at par and continue the bank, substantially as stated above. It his work in constructing the improvements, further stated that Brown had completed his if the funds from the sale of the bonds contract with the drainage district for the should be deposited in the Bank of Corning construction of the drains and that the disand should not be drawn out, except in pay-trict was indebted to Brown in a sum largely ment for work performed by Brown under in excess of the amount on deposit. It his contract. Under this agreement the stated that the funds were deposited in the bank was to pay 1 per cent. interest on daily bank under a contract between the bank, the balances due the district. The district was district, and Brown, and that it was ready a party to this agreement, and the bank and willing to pay to Brown whatever executed to Spinnenweber a bond, for the amount the court might find to be due him. use of the district, to protect it against loss The prayer was that the answer be considon account of the deposit. The bank has at ered as a cross-complaint against the drainall times been ready and willing to pay all age district and that the court determine warrants drawn on it by the drainage dis- the amount of funds owed by the bank to the trict for the construction of the improve

drainage district and direct the payment ment. It has paid all the warrants drawn thereof to the proper person. It asked that on it by the district. Since the beginning summons be issued and served upon the

bank. The answer and cross-complaint was

20 000 on the orders of the district. There is filed and summons issued on August 9, 1916. on deposit in the bank only $8,791.01. Brown The return on the summons shows that it has completed his work under his contract was duly served by the sheriff on the direcwith the drainage district, and there is not tors of the drainage district on the 12th day

, sufficient funds left in the bank to pay him

of August, 1916. for his work. The bank, also, filed a plea of the answer and cross-complaint of the bank, •

The drainage district filed a demurrer to res judicata. Subsequently to the institution of this en 30 days within which to amend its answer

which was sustained, and the bank was givsuit in the circuit court, Brown brought suit in the chancery court against the drainage that the cause was heard upon the complaint

Dhe decree recites

and cross-complaint. district to recover the amount due him and and the amendments thereto, upon the anhad a writ of garnishment issued against swer and cross-complaint of the defendants, the Bank of Corning. The writ of garnish- and upon the allegations and interrogatories ment was returnable on September 4, 1916. filed against the garnishee, the Bank of Brown asked that the Bank of Corning be Corning, the answer to the interrogatories compelled to answer in the chancery court and cross-complaint of the Bank of Corning, the amount of funds in its possession belong- and upon the depositions of certain named ing to the district and be required to pay the witnesses. same according to the orders of the chancery The court found that Brown was entitled

The prayer of the complaint in the to recover of the defendant the sum of $11,present action was that the cause be trans- 902.67, with interest thereon at the rate of ferred to the chancery court and consolidat-6 per cent. per annum from the 16th day of ed with the suit brought by Brown against June, 1916. The court further found, from the district there and that the rights of the the answer filed by the Bank of Corning and respective parties be determined in equity. | from the testimony introduced, that there

was on deposit in the Bank of Corning, sub-, reason that the principles of law contended ject to be applied to the payment of the for are firmly established. We do not think, judgment in favor of Brown, the sum of $8,- however, the rule contended for is applicable 790.01, with 1 per cent. interest thereon to the facts of the present case and the issue from the 23d day of June, 1916; that the raised by the pleadings. It is true the court funds of the drainage district derived from had jurisdiction of the persons and of the the sale of its bonds were deposited in the subject-matter in the present suit, which was Bank of Corning upon a contract that the instituted first, and that ordinarily the rule bank should pay 1 per cent. interest on daily of priority in assuming jurisdiction would balances; that there was due from the bank govern. Subsequently, however, Brown into the drainage district the sum of $8,852.25. stituted a suit in chancery against the drainThe court found for Brown against the de- age district to recover what it owed him, and fendant drainage district for the sum of $12,- the bank was made a garnishee in that suit. 420.42. It was decreed by the court that Equity was the proper forum in which to Brown have and recover from the drainage bring that action. The board of directors district the sum of $12,420.42 and all costs; of the drainage district was an agency of that the Bank of Corning, the garnishee, be the government created for public purposes, ordered and directed to pay to Brown the and on the ground of public policy was not sum of $8,852.25; that upon payment of said subject to garnishment at law. Plummer v. sum to Brown the bank be discharged from School District No. 1 of Marianna, 90 Ark. all liabilities on account of every claim of 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 every kind by the drainage district or its Ann. Cas. 508; Goyer Co. v. Williamson, 107

The court was of the opinion that Ark. 189, 154 S. W. 525. the bank's plea of res adjudicata should be

Of course under the authorities above cited, sustained and judgment rendered for the de- the drainage district would not ordinarily fendant.

have been concluded by the adjudication in Judgment was accordingly rendered in fa- the garnishment proceedings of the amount vor of the defendant bank, and the plaintiff due by the bank. The bank, however, by its has appealed.

answer and cross-complaint, made that an T. W. Campbell, of Little Rock, and W. L. issue, and asked that a summons be issued

T. W. Campbell, of Little Rock, and W. L. and served on the district on its cross-comPope, of Pocahontas, for appellant. C. H. Henderson, of Pocahontas, and G. B. Oliver, demurrer to the answer and the cross-com

plaint. This was done. The district filed a of Corning, for appellee.

plaint of the bank raising this issue.

The

demurrer was sustained by the court, but the HART, J. (after stating the facts as above). bank was given 30 days in which to amend [1-3] It is earnestly insisted by counsel for the its answer and cross-complaint. It is true plaintiff that the court erred in sustaining the record does not affirmatively show wheththe defendant's plea of res adjudicata. The record shows that the treasurer instituted bank. But the record does affirmatively show

er or not this amendment was made by the the present action against the bank to recover from it the funds in its hands belong- and amended complaint of the plaintiff, the

that the case was heard upon the complaint ing to the drainage district before Brown and amended complaint of the plaintiff, the instituted his suit in chancery against the answer and cross-complaint of the defendant, drainage district to recover the amount due ries filed against the garnishee, the Bank of

and upon the allegations and interrogatohim by it, and in which the bank was garnished. Therefore it is claimed that this case Corning, the answer to the interrogatories is governed by the rule of priority in as- and cross-complaint of the Bank of Corning,

suming jurisdiction. One reason given is and upon the depositions of certain named • that, if the principal debtor should be bound

witnesses. by garnishment proceedings subsequently in

The court specifically recites in the decree stituted in another court, he would be placed that it found from the answer and crossentirely in the power of his debtor, who complaint of the bank and the testimony in'might, by confessing in his answer in the troduced that the sum of $8,852.25 was due garnishment proceedings a smaller indebt- from the Bank of Corning to the drainage

district. The court also found that the edness than actually existed, practice fraud

drainage district owed Brown a sum in exupon his creditors. Then, too, a collision would be produced in the jurisdiction of cess of that amount by several thousand courts, which would embarrass the adminis- dollars. The bank was ordered to pay the tration of justice.

plaintiff said sum of $8,852.25, and it was It is also pointed out that, if the question specifically decreed that, upon the payment of the indebtedness between the principal of said sum to the plaintiff, the Bank of defendant and the garnishee could be liti- Corning be discharged from all liabilities on gated in the subsequent preceedings, the gar- account of every claim of every kind by the nishee might be compelled to pay the same drainage district or its treasurer. Here, debt twice. In support of their position coun- then, is a direct adjudication of the very sel cite Black on Judgments (2d Ed.) vol. 2, matter now at issue. The presumption is, in § 594, and the decisions of courts of numer- the absence of a showing to the contrary,

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